Paul Pfeifer
By Paul Pfeifer

Stanley and Kathryn Wasserman own a piece of farmland in Sandusky County, Ohio, that – because of a one hundred-year-old easement – became the center of a case that we reviewed here – at the Ohio Supreme Court.

The easement was created in 1915, for the purpose of draining the land the Wassermans now own. (An easement is “the grant of a use on the land of another.”) The easement gave the owner of the farm the right to construct and maintain a drain tile through the adjacent land to a discharge point into Minnow Creek. The Wassermans are successors in interest of that easement.

At some point during the last decade, the Wassermans built a lift station to further assist with drainage by pumping excess water into the drain tile that ran across the easement. Even with that, storm water commonly accumulated on their property after a heavy rain.

In 2002, the city of Fremont purchased 146 acres for construction of a reservoir. The purchase made Fremont subject to the easement because it ran over the city’s newly purchased property.

In 2005, the Wassermans and Fremont cooperated in replacing the old 12-inch pipe with two eight-inch plastic drainage tiles across the easement. Fremont paid almost $4,000 for its share of the cost. Nevertheless, heavy rain still caused water to accumulate on the Wassermans’ farm.

Then, in 2009, in preparation for constructing the reservoir, Fremont replaced the two eight-inch tiles with a single 12-inch pipe.

In laying the pipe, the city rerouted the pathway of the drainage system so that it skirted around the project site rather than run straight through it. Fremont paid almost $18,000 for the new drain tile and installation of a catch basin.

Although the Wassermans knew about the new pipe, they weren’t consulted about its installation or the rerouting. Stanley was present on the project site on several occasions, during which time he objected to the excavation and relocation.

Ultimately, the Wassermans filed a lawsuit alleging an unconstitutional taking of their land.

In response, Fremont asserted that throughout the installation of the new pipe, it made sure that it maintained and preserved the integrity of the Wassermans’ easement. It constructed a catch basin at the connection point to allow the flow of water from the Wassermans’ property to be monitored. And Fremont asserted that the 12-inch pipe has been working properly to drain storm water from the Wasserman’s across Fremont’s property.

The project manager stated that he personally observed the water discharging into the creek after a heavy rain, consistent with the water flow into the catch basin. But the Wassermans’ witness stated that because of the new arrangement, “the ability of the Wassermans to drain their property has been significantly diminished.”

The Wassermans alleged that the excavation process for the reservoir permanently damaged their eight-inch tiles, resulting in improper drainage of their property. Moreover, they alleged that due to Fremont’s posting of “no trespassing” signs, they have been denied access to the Fremont property to repair and maintain the tiles as provided by the 1915 easement.

On the basis that the actions constituted a taking of their property, the Wassermans requested that Fremont be compelled to commence eminent-domain proceedings to compensate them for their loss.

The court of appeals determined that a taking had occurred because Fremont had unilaterally destroyed and rerouted the original pathway of the 1915 drainage easement. The court ordered Fremont to commence eminent-domain proceedings to determine how much compensation was due to the Wassermans.

After that, the case came before us for a final review. The question before us was this: Did Fremont violate the easement so as to effect a taking by rerouting the original pathway of the 1915 easement, thereby justifying an eminent-domain action?

We determined that the answer depended on the language of the original easement. Under the terms of the original agreement, Fremont’s predecessor “had the right to fix the line and depth of the original drainage tile.”

Therefore, according to the four-to-three majority, the question was whether the right to fix the line and depth means that Fremont retained the right to change that path or whether once set, the path was to remain fixed.

“The terms of the agreement are not clear on this point,” the majority said. “An easement should be interpreted to give effect to the language used in the instrument and to carry out the purpose for which it was created.”

According to the majority, “The purpose of the easement in this case was and remains to drain water from the Wasserman property into Minnow Creek. If the rerouted pipe still accomplishes that purpose, the rerouting does not violate the purpose of the easement.”

Therefore, the majority concluded that Fremont had the right to reroute the line as long as the drainage tile continues to fulfill its primary purpose, which is to drain the Wassermans’ land.

Justices Terrence O’Donnell, William M. O’Neill and I cast the dissenting votes. The majority opinion states that “the purpose of the easement in this case was and remains to drain water from the Wasserman property into Minnow Creek. If the rerouted pipe still accomplishes that purpose, the rerouting does not violate the purpose of the easement.”

But if the rerouting causes the pipe to carry water less quickly, then the purpose of the easement has been violated.

It is obvious that when all other factors – pressure, friction, etc. – are the same, but the length of pipe is increased, the water will drain more slowly. In our opinion, the rerouting has diminished the usefulness of the drainage, thereby affecting the purpose of the easement. Therefore, Justice O’Donnell, Justice O’Neill and I would have affirmed the judgment of the court of appeals.

Nevertheless, the majority concluded that the Wassermans failed to show by clear and convincing evidence that a taking of their property had occurred, and our court therefore reversed the judgment of the court of appeals.

NOTE: The case referred to is: State ex rel. Wasserman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio-2962. Case No. 2013-0535. Decided July 8, 2014. Opinion Per Curiam.